Citation NR: 9721422
Decision Date: 06/18/97 Archive Date: 06/30/97
DOCKET NO. 94-06 115A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
residuals of a right leg injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his brother
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1951 to December
1952.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which found that new and material evidence had not
been submitted in order to reopen a claim for entitlement to
service connection for a right leg disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he has submitted new
and material evidence to reopen his claim, and that this
evidence is sufficient to establish service connection for a
right leg disability to include the knee.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
new and material evidence to reopen the claim of entitlement
to service connection for residuals of a right leg injury.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran’s claim.
2. The RO denied entitlement to service connection for
residuals of an injury to the legs by rating decision dated
in March 1956. The RO’s decision represents the last final
disallowance of entitlement to service connection for a right
leg disability on any basis.
3. The evidence submitted subsequent to the RO’s March 1956
decision in an attempt to reopen the veteran’s claim for
service connection is new but not probative so as to create a
reasonable possibility of a change in the outcome of the
prior final denial.
CONCLUSION OF LAW
The evidence submitted subsequent to the RO’s decision
denying entitlement to service connection for residuals of
injury to the right leg is not new or material; therefore,
the veteran’s claim has not been reopened. 38 U.S.C.A.
§§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The United States Court of Veterans Appeals had held that the
well-groundedness requirement set forth in 38 U.S.C.A.
§ 5107(a) (West 1991) shall not apply with regard to the
reopening of disallowed claims and the revision of prior
final determinations. Jones v. Brown, 7 Vet.App. 134 (1994).
Further, unappealed rating decisions are final with the
exception that a claim may be reopened by submission of new
and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West
1991); 38 C.F.R. § 3.156 (1996).
When a veteran seeks to reopen a claim based on new evidence,
the Board must first determine whether the additional
evidence is "new" and "material." Second, if the Board
determines that new and material evidence has been added to
the record, the claim is reopened and the Board must evaluate
the merits of the veteran's claim in light of all the
evidence, both new and old. Manio v. Derwinski, 1 Vet.App.
140 (1991). The first step of the Manio two-step process
includes determining (i) is the newly presented evidence
“new” (that is, not of record at the time of the last final
disallowance and not merely cumulative); (ii) is it probative
of the issue at hand (that is, each issue which was a
specified basis for the last final disallowance); and (iii)
if it is new and probative, then, in light of all the
evidence, is there a reasonable possibility that the outcome
of the claim on the merits would be changed. Evans v. Brown,
9 Vet.App. 273 (1996); see also Blackburn v. Brown, 8
Vet.App. 97 (1995); Colvin v. Derwinski, 1 Vet.App. 171
(1991); Smith v. Derwinski, 1 Vet.App. 178 (1991).
A review of the record reveals that the RO first denied
entitlement to service connection for various disabilities,
including injury to the legs by means of a rating decision
dated in March 1956, following review of the evidence then of
record to include the veteran’s service medical records and a
VA examination. Briefly, the service medical records
disclosed that in August 1951, he was buried when a bunker
collapsed in on him. He was apparently evacuated to Japan
and received routine treatment for a low backache and was
ultimately discharged to full duty. In December 1951, he
sought treatment for pain in his back and legs worse on
walking. The examiner concluded that the veteran showed an
understandable amount of fear of returning to duty and that a
gentle but firm return to general duty was the best approach
to his problems. In April 1952, he again sought treatment
for low back pain, muscle spasms, and vague hypesthesia over
both legs. The examiner concluded that this was an
understandable and marked conversion reaction, incident to
the trauma nine months previously. Subsequent service
records show treatment for functional back pain, but no
treatment for right leg symptoms was reported. He was
eventually discharged in December 1952.
In a VA examination report dated in February 1956, the
veteran complained of, among other things, injuries to his
legs, feet, and hips. The final diagnosis included the
notation that back, legs, feet, and hip conditions were not
found. Based on the evidence, the RO denied entitlement to
service connection for residuals of injury to the legs on the
basis that nothing was found on the last examination. The RO
notified the veteran of this decision and his appeal rights.
There was no timely disagreement. That decision became final
after one year.
In June 1993, the veteran applied to reopen the claim of
entitlement to service connection for a leg and knee
disability. He was informed by letter from the RO of the
prior final denial and the need to submit new and material
evidence. He submitted no medical evidence but rather
requested a personal hearing, which was conducted in July
1994. During the hearing he noted that he was seeking
service connection for residuals of injury to the right leg.
This appeal is before the Board from the veteran’s
unsuccessful attempt to reopen his claim for entitlement to
service connection for residuals of injury to the right leg
which would include the knee, based on the submission of
additional evidence.
At the personal hearing, the veteran testified that he was
buried in a bunker in Korea and sustained injuries to his
head, chest, back, and legs. He was ultimately hospitalized
for several months, including a period of time in Japan.
Later, his MOS was changed because he could not run, climb
hills, and carry equipment. He indicated that he went to the
VA hospital about a year after service but that they could
not find anything wrong with his leg. He related that he did
not have money to seek private treatment at that time. He
testified that his legs, especially the right leg, had gotten
progressively worse over the last five to six years and that
he swam in order to get some relief. He reported that he
also took Tylenol for discomfort.
The veteran’s brother testified that when the veteran
returned from service, he complained about his back and his
leg. He indicated that the discomfort limited the veteran as
far as daily activity was concerned. He also stated that the
veteran never got satisfaction at the VA and they always said
that everything was okay. The veteran further reported that
he had never received a definitive diagnosis of what the
problem was but he believed that his hamstrings were shot.
After a review of the record, the Board finds that the
veteran has not submitted new and material evidence. The
only evidence submitted in support of the claim is the
testimony of the veteran and his brother. Although the
veteran related the incident of being buried in the bunker
and receiving medical treatment for the injuries received in
his personal hearing, there is no competent evidence in the
claims file that he sustained a disability of the right leg,
including the knee in service. His testimony about having
sustained an accident in service is repetitive and is
essentially corroborated by the service medical records, but
this was known in 1956 when the RO initially decided the
claim. By all accounts, the RO considered the veteran’s
service medical records at the time. Accordingly, the Board
concludes that the evidence submitted subsequent to the March
1956 rating decision is duplicative of evidence previously
considered by the RO, and is therefore not “new” and
“material” to reopen his claim as required under the
applicable statutory and regulatory provisions.
The Board has also considered the various written statements
submitted by the veteran. Although his statements are deemed
truthful and probative of symptomatology, they are not
competent or credible evidence to establish a diagnosis, or
medical causation of a disability. See Grottveit v. Brown, 5
Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App.
492, 494-95 (1992); Miller v. Derwinski, 2 Vet.App. 578, 580
(1992). The veteran simply lacks the medical expertise to
offer an opinion as to the existence of medical causation of
any current disability. In the absence of competent,
credible evidence suggesting a nexus between any current
right leg disorder and his military service, the evidence
discussed above, may not be regarded as new and material to
reopen the claim for entitlement to service connection for a
right leg disability. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156 (1996). No further adjudication of this claim
is warranted. See Kehoskie v. Derwinski, 2 Vet.App. 31
(1991).
Finally, the Board notes the veteran’s has requested an
examination. There is no competent evidence that he has a
right leg disability. Assuming that an examination may
demonstrate the current existence of a right leg disorder, it
would not be material to the claim, as it is improbable that
it would provide a nexus to his military service. In any
event, the fact is that no new and material evidence has been
submitted to this day which would serve to reopen the current
claim of service connection for residuals of injury to the
right leg.
ORDER
New and material evidence having not been submitted, the
claim for entitlement to service connection for residuals of
a leg injury is not reopened and the benefits sought are
denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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